How will making an EB-5 investment affect H-1B status?

There is a holding company and I plan on becoming a non-executive director with an investment of $500,000 or $1 million. The holding company has 10 paid employees and I will maintain my status as an H-1B worker working for another enterprise. Will I qualify for an EB-5 visa? Will there be any implications on my H-1B status?

Answers

It would depend on many factors that an immigration attorney would ascertain in a consultation and representation. Briefly, H-1B allows for "dual intent," meaning you can apply for an immigrant status/green card while maintaining the H-1B nonimmigrant status (but you also need to keep in mind the maximum amount of H-1B status you can have!).

Your EB-5 investment in a new commercial enterprise has to create 10 new full-time employees, even if it is an existing business with existing employees. The filing of an EB-5 petition I-526 will not interfere with your current H-1B status.

Filing the I-526 should not affect your current H-1B status because H-1B is a dual intent visa as long as your role is as a passive investor and you will not actively manage affairs of the EB-5 business, which violates your current H-1B status. Filing the I-526 will not afford you any immigration status. It is not clear whether your EB-5 investment will create the minimum required 10 full-time jobs (at least 35 hours a week). You cannot count the existing 10 jobs unless your EB-5 investment is made in a troubled business. Ensure you consult an experienced EB-5 immigration attorney before you invest.

Generally, a petition for EB-5 will not affect your current H-1-B status. However, if you invest $500,000 or $1 million, then file for and obtain a green card under EB-5, then you do not need an H-1B visa. The new green card is all you need to work anywhere you want, particularly since your plan is to be a non-executive partner in the EB-5 business enterprise. Consult an EB-5 attorney; if planned well, your plan is possible.

H-1B is a dual intent visa category. Thus, you expressing an immigrant intent by filing the I-526 (EB-5) case will not negatively affect that visa status. It will be important to maintain the H-1B status as it was sponsored without changing employer without previous approval to do so, etc. until your I-526 and the change of status based on the I-526 is approved.

The company you are going to invest in must create an additional 10 jobs with your investment. If they have already had 10 employees, this fact will not make you eligible for an EB-5 visa. They have to hire 10 more in addition to the existing employees, unless this company is a "troubled business" defined by the law. Being an investor only will not invalidate your H-1B status.

Fortunately, the H-1B allows for dual intent. If you file an immigrant petition or even file for an immigrant visa/adjustment of status, you still should be able to obtain subsequent H-1B visas. It is important to know the difference between owning a business that is independent of your H-1B petition and engaging in unauthorized employment. It is a very fine line and requires striking a balance between taking an active role in managing the fruits of your investment versus becoming a purely passive investor. It may be worthwhile to err on the side of caution with regard to your role with the holding company until you receive your Employment Authorization Document or green card, ensuring that you do not violate your employer-specific status.

You can continue in H-1B status while the EB-5 process is underway. The H-1B is a dual intent visa and there will, therefore, not be any prejudice in the event that it has to be renewed during the EB-5 process. Once the I-526 is approved and you adjust status to permanent resident you will be able to cease or continue with your prior employment as you wish. However, either way, your employment will not qualify as one of the 10 new jobs you seek to create for the EB-5 investment.

John J Downey

Immigration Attorney

Answered onAugust 3, 2016

You may qualify for EB-5; however, once accepted, you would adjust your status to conditional permanent resident.

Making an EB-5 investment and filing an I-526 investor petition will not in any way impact your H-1B status. However, you are not authorized to work for the company in which you invested unless you obtain a concurrent H-1B nonimmigrant visa status, which may be possible.

No implications or effect to your H-1B status/visa by processing for the EB-5 immigrant investor petition, since H-1B is a dual intent visa status (it is a nonimmigrant visa status, but allows for immigrant intent) and you can simultaneously own/invest in the new commercial enterprise.

Investing in an existing company that already has 10 employees may not qualify you for a green card through the EB-5 program. The purpose of the program is to create (or in some cases save) jobs. Investing in a viable company that already has employees would likely not meet this criteria. You should schedule a consultation with an experienced immigration attorney to discuss your matter in more detail, including the effect filing could have on your current H-1B status.

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